Hate-Motivated Violence

Options for Reform

In contrast with the proposal that the mens rea requirement
for the crime be that of "purpose" or "recklessness", it may
be argued that a crime or crimes of hatemotivated violence
should include negligent behaviour, on the ground that the
criminal law should be as vigilant as possible in combatting
such violence. For example, the Australian Law Reform
Commission has recommended the creation of a crime of racist
violence that includes both subjective and objective fault
requirements. In other words, the crime would catch both
intentional harm to the members of an "identifiable group"
and- harm that the accused "ought reasonably to have
foreseen" would be caused to members of the group, provided
that the conduct was likely to cause members of the group to
fear for their physical safety because they are members
of the group.<242> Our criminal law, as previously noted,
does criminalize certain negligent behaviour; for example,
the crime of dangerous driving (Code, section 249). However,
the disadvantage of extending a crime of hate-motivated
violence to include negligent conduct is that it is arguably
inconsistent with the rationale for treating hate crimes as
separate from other crimes in the first place. This
rationale is that it is wrong to harm someone by reason of
hatred of a person's actual or perceived race, colour,
religion, ethnic origin, et cetera. A crime of hate-
motivated violence that includes negligent conduct, however,
effectively denies that the element of hateful motivation is
necessary; instead, the focus of the crime becomes the
effect that the conduct has had on the members of the group
put at risk by such behaviour. In short, such a law would
appear to criminalize conduct that was the result of
unconscious racism. In such a situation, the crime arguably
has a minimal deterrent impact.<243>

Option 12. The definition of either a sentencing
provision or a specific criminal law relating to hate-
motivated violence should protect a person who is a
member of a group identifiable on the basis of race,
national or ethnic origin, colour, religion, sex, age,
mental or physical disability, or sexual orientation.

The next issue is how to define the members of an
"identifiable group" who should be protected by the criminal
law. There are arguably three ways to proceed: continue to
apply the same definition of "identifiable group" that now
exists with
regard to the crimes of hate propaganda; expand the
definition of "identifiable group" to include those groups
explicitly mentioned by the equality guarantee of the
Charter (i.e., subsection 15(1)); or expand the definition
of "identifiable group" to include even more groups than
those explicitly set out in the _Charter_.

The benefits of the first approach are its familiarity (not
a useful argument to advance when one is deciding if the law
should be reformed), and its consistency with existing law.
The latter benefit should not be dismissed easily. It would
seem somewhat strange if the definition of "identifiable
group" for the purpose of a crime or crimes of hate-
motivated violence were different from that used in defining
the crimes of hate propaganda. However, the consistency
argument works both ways: If an expanded definition of
"identifiable group" were to be created for a crime of
hatemotivated violence, consistency in approach would still
exist so long as, at the same time, the definition of
"identifiable group" for the crime of hate propaganda were
changed accordingly.

The benefit of the second approach is that it creates more
consistency between the treatment of members of groups
singled out for protection by the criminal law and that of
members of groups explicitly protected from discriminatory
treatment under the equality guarantee set out in subsection
15(1) of the Charter. Its disadvantage is, first, that the
list of criteria set out in the equality guarantee remains
an ad hoc one (since the criteria are not listed in a
restrictive manner) and, secondly, that it expands the
definition of groups to include some whom it would seem
unnecessary to include because there is no evidence of
attacks motivated by hatred of certain immutable
characteristics set out there (e.g., the categories of age,
or physical or mental disability). Regarding the category of
sex, it is submitted that using criminal law to prosecute a
misogynist who harms women is, in principle, justifiable.

Concerning the third approach, if one of the rationales for
protecting members of certain groups is to protect those who
appear to be most at risk of physical violence by reason of
being a member of that group (clearly a justifiable reason
for invoking the use of the criminal law), then it would be
most reasonable to include the category of "sexual
orientation" within the definition of "identifiable group".
Thus, by adding this category to that recommended in the
previous paragraph, the result would be to have
"identifiable group" mean a group identifiable on the basis
of race, national or ethnic origin, colour, religion, sex,
age, mental or physical disability, or sexual orientation.

However, in the event that such a broad list of criteria is
seen to be unacceptable because it includes too many groups
who are not at risk of hatemotivated violence, it would
nonetheless still be justifiable to add the category of
"sexual orientation" to whatever narrower list of criteria
is selected. There does not appear to be any disadvantage to
including "sexual orientation" as a group whose members
should be protected from hate-motivated violence.

Option 13. The definition of a sentencing provision or
of a specific crime or crimes of hate-motivated
violence should protect not only those who are members
of the identifiable group, but also those who are
attacked because of their support for members of such
groups. It should not be restricted so as to protect
only members of minority groups.

This option sets out whom else the law should protect other
than members of those groups set out in Option 12.
Obviously, the law should catch the usual situation where
the victim is a member of the identifiable group that the
person hates; for example, a white supremacist attacking a
young black person. But, in addition, it should also protect
a person who is attacked by reason of the attacker's hatred
of the actual or perceived race, colour, religion, ethnic
origin, et cetera, of someone who is not the victim. For
example, as the Australian Human Rights and Equal
Opportunity Commission points out, another category of
racist violence is that of violence directed against people
who have "made a public stand against racism and racist
violence. These people had been attacked because of their
anti-racist stance and not because of their ethnicity."<244>
In principle, it seems only logical that any criminal law
prohibiting hate-motivated violence should protect as much
as possible all victims of such violence. This part of the
option does not appear to have any disadvantages.

Another, more controversial, issue is whether such a
criminal law should be defined so that, in effect, members
of minority groups would not be caught by the definition of
the crime. As previously noted, some American legal
commentators have suggested reforms to this effect that
include a presumption of racist intent, which a white
accused would have to rebut.<245> Such a proposal has
obvious disadvantages. Constitutional problems arise: it
appears to contravene the presumption of innocence and the
equality guarantee of the Charter.<246> Also, the creation
of such a crime ignores the real possibility that a hate-
motivated attack could be made against someone who is white.
(This occurred in the Mitchell case recently decided by the
United States Supreme Court.) Finally, the creation of such
a crime could very well be counterproductive by creating
resentment among the majority of the population that
minorities are being singled out for special protection by
the criminal law.

Two ancillary issues are addressed here: the extent to which
the criminal law should be used to provide damages to a
victim of hate-motivated violence, and the utility of
providing for a crime of violating a person's constitutional
rights.

Option 14. Consideration should be given, as ancillary
to a crime or crimes of hatemotivated violence, to
creating a damages provision that would allow a
criminal court, on completion of a hate-crimes trial,
to award punitive damages to the victim of such
violence.

This option is essentially a criminal law variation of
American proposals and enactments that enable a victim of
racist violence to sue in a civil action for damages caused
by the attack. For example, such a provision is provided for
in the ADL model legislation. These proposed civil remedies
are quite broad. They include a civil action for damages,
which also allows for punitive damages, payment of the
reasonable fees of the prosecutor, parental liability for a
judgment against a minor, and the ability to obtain an
injunction as well as any other form of equitable
relief.<247> Some American states have also created the
ability to obtain civil damages for a hate-motivated
attack.<248>

Is the criminal law an inappropriate forum for the creation
of a punitive damages mechanism? Although rare, the power to
award punitive damages is not unknown to our criminal law.
In electronic surveillance cases, Code, section 194
provides, in part, that a court that convicts a person of
crimes such as unlawful interception or disclosure of a
private communication may order, on the application of an
aggrieved person, that the aggrieved person be paid an
amount not exceeding five thousand dollars as punitive
damages. By analogy, one could argue that a punitive damages
section should be created and included as a necessary
component of any proposed crime of hate-motivated violence.
After all, a victim of hate-motivated violence has been
subjected to a particularly heinous attack, and may not be
financially able to pursue a civil action. (An additional
remedy could be the possibility of obtaining injunctive
relief against such attackers, particularly if the violence
is part of an ongoing activity.)

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